BRB No. 00-1044 BLA
SHIRLEY ROBINSON )
(Widow of JAMES ROBINSON) )
)
Claimant-Petitioner )
)
v. ) DATE ISSUED:08/30/2001
)
DIRECTOR, OFFICE OF WORKERS' )
COMPENSATION PROGRAMS, )
UNITED STATES DEPARTMENT )
OF LABOR )
)
Respondent ) DECISION and ORDER
Appeal of the Decision and Order of Donald W. Mosser, Administrative
Law Judge, United States Department of Labor.
James M. Robinson (Robinson, Rice & Levy, L.C.), Huntington, West
Virginia, for claimant.
Timothy S. Williams (Howard M. Radzely, Acting Solicitor of Labor;
Donald S. Shire, Associate Solicitor; Rae Ellen Frank James, Deputy
Associate Solicitor; Richard A. Seid and Michael J. Rutledge, Counsel
for Administrative Litigation and Legal Advice), Washington, D.C., for
the Director, Office of Workers' Compensation Programs, United States
Department of Labor.
Before: HALL, Chief Administrative Appeals Judge, SMITH, Administrative
Appeals Judge, and NELSON, Acting Administrative Appeals Judge.
PER CURIAM:
Claimant, the miner's widow, appeals the Decision and Order (99-BLA-0871) of Administrative Law Judge Donald W. Mosser (the administrative law
judge) ordering an offset of benefits awarded the deceased miner on a claim
filed pursuant to the provisions of Title IV of the Federal Coal Mine Health
and Safety Act of 1969, as amended, 30 U.S.C. §901 et seq. (the
Act).[1] The administrative law judge
ordered that the benefits awarded the deceased miner under the Act be offset
by 20% of the second injury life award (SILA) granted the miner by the State
of West Virginia. Claimant contends that there should be no offset or
overpayment charged in this case because the Workers' Compensation
Commissioner for the State of West Virginia failed to determine the specific
contributory effect of the miner's pneumoconiosis in awarding the SILA. The
Director, Office of Workers' Compensation Programs (the Director), responds,
urging affirmance of the decision below.
The Board's scope of review is defined by statute. If the administrative law judge's findings of fact and
conclusions of law are supported by substantial evidence, are rational, and are consistent with applicable law, they
are binding upon this Board and may not be disturbed. 33 U.S.C. §921(b)(3), as incorporated by 30 U.S.C.
§932(a); O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965).
The undisputed pertinent facts of this case are as follows: The miner
filed the instant claim on December 9, 1972. Director's Exhibit 1. By
Decision and Order dated April 23, 1981, Administrative Law Judge Virginia
Mae Brown awarded benefits to commence June 1, 1978. Director's Exhibit
5. The record shows that the miner had received, from the State of West
Virginia, a number of awards for permanent partial disability due to various
injuries he suffered. Claimant's Exhibits 1-5. The record also shows that
the State of West Virginia awarded the miner workers' compensation benefits
for pneumoconiosis; 15% in 1973 and an additional 5% in 1976 for a total of
20% permanent partial disability due to pneumoconiosis, in connection with
two state claims that the miner had filed. Director's Exhibit 6; Claimant's
Exhibit 6.
On October 1, 1982, the State of West Virginia awarded the miner a SILA
on the ground that he was totally and permanently disabled by the combined
effect of all of his injuries and pneumoconiosis. Director's Exhibit 26.
Specifically, the commissioner for the Workmen's Compensation Fund indicated
that the miner "suffers from pre-existing permanent disability attributable
to multiple prior injuries and occupational pneumoconiosis, and through the
combined effect of these injuries and occupational pneumoconiosis is now
permanently and totally disabled..." Id. By letter dated December
16, 1982, the Director of the State of West Virginia Coal Workers'
Pneumoconiosis Fund calculated that 23.53% of the miner's SILA was the
portion by which his benefits under the Act should be offset. Director's
Exhibit 23 at 2. The Director of the State of West Virginia Coal Workers'
Pneumoconiosis Fund later advised the district director that the state
fund's policy for apportioning offset due to the SILA had been re-evaluated,
namely, that the former calculation of 20% of 85% disability (or 23.53%)
should be recalculated as 20% of 100% disability (or 20%). The district
director sought clarification of this re-calculation. Director's Exhibit
25. In response, the Director of the State of West Virginia Workers'
Compensation Coal-Workers' Pneumoconiosis Fund informed the district
director that "at the maximum 20% of Mr. Robinson's life award is due to
pneumoconiosis" and thus, the appropriate offset of the miner's award of
benefits under the Act would be calculated based on 20% of the SILA (or 20%
of 100% disability); that the previous policy of calculating disability
based on disability awards totaling at least 85%, was not correct, and was
started and stopped with this miner's state claim. Director's Exhibit 26.
The miner challenged whether any offset was due and further challenged
the method by which the offset was calculated. Director's Exhibit 39. On
March 4, 1999, counsel for the miner requested a formal hearing on the
offset issue. Director's Exhibit 29. The miner died five days later on
March 9, 1999. Director's Exhibit 30. Claimant filed a Survivor's
Notification of the Beneficiary's Death on April 6, 1999. Director's
Exhibit 31. On April 7, 1999, the district director determined that
claimant was entitled to receive benefits on her own behalf as of March 9,
1999 at the monthly rate of $459.50, and awarded these benefits, with the
Black Lung Disability Trust Fund liable for the payment thereof. Id.
On April 14, 1999, pursuant to claimant's request, the district director
transferred the case to the Office of Administrative Law Judges for
resolution of the issue of whether the benefits awarded under the Act should
be offset due to the SILA which was awarded to the miner by the State of
West Virginia. Director's Exhibit 32. The parties thereafter agreed to a
determination on the record. The administrative law judge's ensuing
Decision and Order, dated June 20, 2000, is the subject of the instant
appeal.
The administrative law judge found that an offset of the miner's award
of benefits under the Act was required because a portion of the SILA which
was awarded to the miner by the State of West Virginia was attributable to
the miner's pneumoconiosis. The administrative law judge found that 20% of
the SILA was attributable to the miner's pneumoconiosis, and ordered that
the miner's award of benefits under the Act be offset by 20% of the SILA.
Claimant contends that because the SILA does not state the degree to
which the deceased miner's pneumoconiosis contributed to his total and
permanent disability, and since it was the miner's back injury and hearing
loss, and not his pneumoconiosis, which actually caused him to receive the
SILA, there should be no offset or overpayment[2] charged to claimant. Claimant asserts as follows:
[N]othing in the record developed before the [State of West
Virginia] Workers' Compensation Commissioner permits a
determination on the amount, if any, that occupational
pneumoconiosis contributed to the [miner's award for] permanent
total disability. Instead, the evidence reveals that the [miner]
received a 20% permanent partial disability award while he was
working. [The miner] did not apply for a permanent total
disability award until after he had sustained his 1978 back
injury. This back injury that he sustained was one of three back
injuries based on Dr. Mattill's opinion that accounted for at
least 20% of his impairment.
... Given the remedial purposes of the Federal Black Lung Act, if
there are any doubts concerning the contributory role, if any,
occupational pneumoconiosis played in a claimant's permanent total
disability, then those doubts must be resolved in claimant's
favor...
If [the miner] had ceased working due to his occupational
pneumoconiosis, then perhaps the Department of Labor's position
would be better supported. See Director, OWCP v.
Hamm, 113 F.3d 23, [21 BLR 2-131] ([4th Cir.] 1997). But the
record in this case, when construed in the claimant's favor,
clearly reveals that occupational pneumoconiosis is
not the reason [the miner] stopped working. [The
miner's] back injury was the last injury that he sustained and was
the proverbial straw that broke the camel's back here. Thus, this
case is clearly distinguishable from Hamm.
Claimant's Brief at 25(emphasis provided). Claimant thus asserts that
without proof as to what contribution the miner's pneumoconiosis made to his
total disability, the administrative law judge simply assumed that because
the miner received permanent partial disability awards for his
pneumoconiosis totaling 20%, then 20% of the SILA for permanent total
disability must be attributable to the miner's pneumoconiosis. Claimant's
Brief at 29. The Director contends that substantial evidence supports the
administrative law judge's finding that the miner's award of benefits under
the Act is subject to offset and that the amount of the offset is an amount
representing 20% of the SILA.
The Act provides that benefit payments shall be reduced for state
benefits received "on account of the disability of such miner due to
pneumoconiosis." 30 U.S.C. §922(b). The Act further provides for the
reduction of benefits under the Act by the amount of state benefits received
"because of death or disability due to pneumoconiosis." 30 U.S.C.
§932(g). The regulations at 20 C.F.R. §725.533(a) and (a)(1)
provide for the reduction of federal benefits "on account of" state benefits
received "because of death or partial or total disability due to
pneumoconiosis." The regulation at 20 C.F.R. §725.535(a) defines the
term "State or Federal Benefit" as "a payment to an individual on account
of disability or death due to pneumoconiosis only under State or Federal
laws relating to workers' compensation." The regulation at 20 C.F.R.
§725.535(b) provides:
Benefit payments to a beneficiary are reduced (but not below zero)
by an amount equal to any payments of State or Federal benefits
received by such beneficiary for such month.
20 C.F.R. §725.535(b).
Claimant's contention, that there should be no offset because the face
of the SILA does not indicate what percent the miner's disability due to
pneumoconiosis contributed to the SILA, lacks merit. The SILA expressly
states that it was based on the miner's disability due to the combined
effect of multiple prior injuries and occupational pneumoconiosis.
Director's Exhibit 26. Therefore, some portion of the SILA is
attributable to pneumoconiosis, and thus, the miner's award of benefits
under the Act is subject to offset. See 20 C.F.R. §725.533(a),
(a)(1). The total percentage of the SILA attributable to the miner's
pneumoconiosis determines the portion of the state award by which benefits
awarded under the Act must be offset. 20 C.F.R. §725.535(b);
Director, OWCP v. Hamm, 113 F.3d 23, 21 BLR 2-131 (4th Cir. 1997);
Burnette v. Director, OWCP, 14 BLR 1-151 (1990). In this regard, the
United States Court of Appeals for the Fourth Circuit, in Hamm,
rejected the claimant's argument that his benefits awarded under the Act
should be reduced by only 20% because the only permanent partial disability
award for pneumoconiosis explicitly mentioned in the claimant's SILA was his
final 20% award, and not his prior permanent partial disability awards for
pneumoconiosis which totaled an additional 30%. The court indicated that
claimant's conclusion "accords with neither West Virginia law nor the
evidence and would vitiate the congressional intent underlying the offset
provision." Hamm, supra, 113 F.3d at 25, 21 BLR at 2-136.[3] Consistent with Hamm, we reject
claimant's argument that there should be no offset of benefits in
this case because the SILA does not indicate, on its face, what portion of
the award is attributable to the miner's pneumoconiosis. See Hamm,
supra. We, therefore, uphold the administrative law judge's
determination that the deceased miner's award of benefits under the Act is
subject to being reduced by the portion of the SILA that is attributable to
the miner's pneumoconiosis. Decision and Order at 7.
The issue thus remains: What percent of the SILA is attributable to the
miner's pneumoconiosis? Claimant emphasizes the fact that the miner
received his two state awards for permanent partial disability due to
pneumoconiosis while he was working and argues that it was his later
permanent partial disability awards for a back injury and hearing loss, and
not his pneumoconiosis, that actually caused the miner to receive the
SILA. Claimant thus argues that the case in Hamm, wherein the court
considered the aggregate, as opposed to the most recent, of the
claimant's state awards based on disability due to pneumoconiosis to
determine the portion of the SILA by which his award of benefits under the
Act would be reduced, is distinguishable from the instant case.
Claimant's contentions lack merit. We affirm the administrative law
judge's finding that 20% of the SILA is attributable to the miner's
pneumoconiosis, as the record contains evidence of the aggregate percentage
of the miner's disability attributable to his pneumoconiosis. See Hamm,
supra. The administrative law judge correctly noted that the SILA
indicates that the award for permanent total disability is based upon the
combined effect of the miner's injuries and his pneumoconiosis. Director's
Exhibit 26. The administrative law judge then properly found as follows:
The evidence is clear that the state fund attributed 20 percent of
the miner's disability to occupational pneumoconiosis based upon
previous permanent partial disability awards. (CX 6). Even the
Commissioner of the West Virginia State Worker's (sic) Compensation
agrees that 20 percent is the correct percentage to use in
determining the appropriate offset of federal benefits. Hence I
find that the correct percentage of the SILA due to occupational
pneumoconiosis is 20 percent.
Decision and Order at 9. In so finding, the administrative law judge
properly relied on the Board's holding in Burnette, that when a state
compensation award is based on a finding that a specific percentage of the
claimant's award for total disability is due to pneumoconiosis, that
percentage determines the amount of offset necessitated by 20 C.F.R.
§725.535(b). Further, the claimant in Hamm argued that the
amount of offset of his award of benefits under the Act should be based on
the percentage of the last award of permanent partial disability due to
pneumoconiosis, which was the only such award mentioned in the SILA. In
rejecting claimant's argument, the court indicated that the "plain language"
of the West Virginia workers' compensation statute requires the Workers'
Compensation Commissioner to consider the cumulative effect of an employee's
injuries. The court stated:
An employee is entitled to a SILA when the employee becomes
"permanently and totally disabled through the combined effect
of [] previous injury and a second injury received in the
course of... employment." W.Va. Code §23-3-1(d)(1)(emphasis
added.). Hamm's second injury for purposes of the statute was his
additional 20 percent impairment due to pneumoconiosis. His
previous injury consisted of pre-existing disability resulting from
pneumoconiosis and the injuries to his finger and back. Hamm
offers no suggestion as to how else one should determine the
combined effect of these injuries other than by aggregating the
partial disability awards. Moreover, the West Virginia Supreme
Court of Appeals has explicitly held that "all prior injuries are
to be cumulated toward consideration of the claim for total
disability." Gillespie v. State Workmen's Compensation
Comm'r, 157 W.Va. 829, 205 S.E.2d 164, 168 (1974).
Hamm, supra, 113 F.3d at 25, 21 BLR at 2-136, 137. Accordingly,
claimant's attempt to distinguish Hamm from the instant case, based
on his assertions concerning which injury actually precipitated the SILA,
is unavailing.
Based on the foregoing, we affirm the administrative law judge's finding
that the miner's award of benefits under the Act is subject to offset in an
amount equal to 20% of the SILA. We, therefore, affirm the administrative
law judge's Decision and Order ordering that the benefits awarded the miner
under the Act be offset by 20% of the SILA awarded the miner by the State
of West Virginia.
Accordingly, the administrative law judge's Decision and Order is affirmed.
SO ORDERED.
BETTY JEAN HALL, Chief
Administrative Appeals Judge
ROY P. SMITH
Administrative Appeals Judge
MALCOLM D. NELSON, Acting
Administrative Appeals Judge
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Footnotes.
1)The Department of Labor has amended the regulations
implementing the Federal Coal Mine Health and Safety Act of 1969, as
amended. These regulations became effective on January 19, 2001, and are
found at 65 Fed. Reg. 80,045-80,107 (2000)(to be codified at 20 C.F.R. Parts
718, 722, 725 and 726). All citations to the regulations, unless otherwise
noted, refer to the amended regulations.
Pursuant to a lawsuit challenging revisions to 47 of the regulations implementing the Act, the United States
District Court for the District of Columbia granted limited injunctive relief for the duration of the lawsuit, and
stayed, inter alia, all claims pending on appeal before the Board under the Act, except for those in which
the Board, after briefing by the parties to the claim, determined that the regulations at issue in the lawsuit would
not affect the outcome of the case. National Mining Ass'n v. Chao, No. 1:00CV03086 (D.D.C. Feb. 9,
2001)(order granting preliminary injunction). The Board subsequently issued an order requesting supplemental
briefing in the instant case. On August 9, 2001, the District Court issued its decision upholding the validity of the
challenged regulations and dissolving the February 9, 2001 order granting the preliminary injunction. National
Mining Ass'n v. Chao, Civ. No. 00-3086 (D.D.C. Aug. 9, 2001). The court's decision renders moot those
arguments made by the parties regarding the impact of the challenged regulations.
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2)The administrative law judge indicated that although the
issue was not before him, there was a dispute as to the correct amount of
overpayment. The administrative law judge stated that the parties would be
able to resolve the matter following the issuance of his Decision and Order.
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3)Citing Carbon Fuel Co. v. Director, OWCP
[Kyle], 20 F.3d 120, 121-22 (4th Cir. 1994)(quoting Freeman v.
Harris, 625 F.2d 1303, 1307 (5th Cir. 1980), the United States Court of
Appeals for the Fourth Circuit, in Director, OWCP v. Hamm, 113 F.3d
23, 21 BLR 2-131 (4th Cir. 1997), stated:
In passing the Act, however, Congress did not intend that the
federal government would become the primary benefits provider.
Rather Congress expressed a clear legislative desire... for state
workers' compensation programs to be the primary provider of
disability payments and for the federal government to be
responsible only if the state program is not adequate.'
Hamm, 113 F.3d at 25, 21 BLR at 2-135, 136.
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NOTE: This is an UNPUBLISHED BLA Document.
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